DISTRICT COURT OF APPEAL OF CALIFORNIA. ELK GROVE UNION HIGH SCHOOL DIST. VS. INDUSTRIAL ACC. COMMISSION OF STATE OF CALIFORNIA. IN RE HOAG. (Civ. 1696.)* 1. WORKMEN'S COMPENSATION-INJURY ARISING OUT OF EMPLOYMENT. Under the Workmen's Compensation Act, § 12, the question whether an injury occurred or arose out of and in the course of the employment, or was the direct result of wilful misconduct, involves jurisdictional facts. 2. WORKMEN'S COMPENSATION-REVIEW BY CERTIORARI. An award of the Industrial Commission, unsupported by evidence, will be set aside by the courts, on certiorari, as involving an act in excess of jurisdiction. 3. WORKMEN'S COMPENSATION ACT-AWARD. To justify an award under the Workmen's Compensation Act, there must be sufficient competent evidence to support every jurisdictional fact essentially involved in application for compensation. 4. WORKMEN'S COMPENSATION-ARISING OUT OF EMPLOYMENT. An injury arises out of the employment when there exists a causal connection between the conditions under which the work is required to be performed and resulting injury. 5. WORKMEN'S COMPENSATION-INJURY ARISING OUT OF THE EMPLOYMENT. A school-teacher received an injury "arising out of the employment," within the Workmen's Compensation Act, where she was injured in shoving over a heavy desk not in its accustomed place to enable her to get a book from a case, required to facilitate her school work. 6. WORKMEN'S COMPENSATION-IMPRUDENT ACTS. A servant is not to be denied relief because the injury has been superinduced by mismanaging the duties of his employment, unless it amounts to wilful misconduct. 7. WORKMEN'S COMPENSATION ACT DUCT. WILFUL MISCON A female teacher was not as a matter of law guilty of "wilful misconduct," in shoving aside a 458-pound desk to get a necessary book from a case, and injuring her spine. Proceedings under the Workmen's Compensation Act by Edith L. Hoag to obtain compensation for personal injuries, opposed by the * Decision rendered, Sept. 11, 1917. Rehearing denied, by Supreme Court. 168 Pac. Rep. 392. Vol. I-Comp. 10. Elk Grove Union High School District, the employer. Compensation was awarded. Certoriari by employer to review the award of the Industrial Accident Commission of the state of California, A. J. Pillsbury, Will J. French, and Meyer Lissner, as members constituting such commission. Award affirmed. H. B. Bradford, Dist. Atty., and J. R. Hughes, Deputy Dist. Atty., both of Sacramento (Stephen F. Otis, of Sacramento, of counsel), for Petitioner. Christopher M. Bradley, of San Francisco, for Respondents. HART, J. Upon the application of the petitioner, a writ of certiorari was issued by this court for the purpose of reviewing an award entered by the Industrial Accident Commission upon findings in favor of the applicant, Edith L. Hoag, that she had suffered physical injury while engaged in her employment as a teacher of the petitioner, and that such injury arose out of and in the course of such employment. The principal or most important question submitted for decision here is whether the evidence does or does not support the finding that the accident whereby the applicant sustained the physical injury for which she was awarded compensation by the respondents arose out of and in the course of her employment as a teacher of the petitioner, Elk Grove Union High School. [1-3] Preliminary to the examination of the question thus propounded, it may be well to restate the following legal propositions which have been settled by the decisions, with respect to the powers of the Industrial Accident Commission under the law creating the body: (1) That the question whether the accident causing the injury complained of occurred or arose out of and in the course of the employment of the applicant, as well as the question whether the accident was or was not the direct result of the willful misconduct of the injured party, involve jurisdictional facts; (2) that an award by the commission which is unsupported by the evidence will be set aside by the courts, on certiorari, as involving an act in excess of the jurisdiction of the commission; (3) that to justify the upholding of an award, there must be sufficient competent evidence to support every jurisdictional fact essentially involved in the application for compensation. County of Modoc vs. Industrial Accident Commission et al., 32 Cal. App. 548, 163 Pac. 685; Nortwestern Pac. R. R. vs. Industrial Acc. Com. et al., 163 Pac. 1000; Great Western Power Co. vs. Pillsbury et al., 170 Cal. 180, 149 Pac. 35; Ocean Acc. & Guar. Co. et al. vs. Industrial Acc. Com. et al., 173 Cal. 313, 159 Pac. 1041, L. R. A. 1917B, 336; Reck vs. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771; International Harvester Co. vs. Ind. Acc. Com., 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330; In re Buckley, 218 Mass. 354, 105 N. E. 979, Ann. Cas. 1916B, 474; Employers' Assurance Corporation vs. Industrial Acc. Com. et al., 170 Cal. 800, 151 Pac. 423; Fidelity & Deposit Co. vs. Indus. Acc. Com. et al., 171 Cal. 728, 154 Pac. 834, L. R. A. 1916D, 903; Englebretson vs. Indus. Acc. Com., 170 Cal. 793, 151 Pac. 421; Kimbol vs. Indus. Acc. Com., 173 Cal. 351, 160 Pac. 150, L. R. A. 1917B, 595; Section 12, Workmen's Compensation, etc., Act; Stats. 1913, pp. 279, 283. The uncontradicted testimony in this case reveals these facts: That the applicant, Miss Edith L. Hoag, had been employed by the trustees of the petitioner, Elk Grove Union High School District, as a teacher therein. Her duties were to teach three classes in history, one in English, one in cooking, and one in hygiene. The social activities of the students were carried on in the school building. These affairs consisted of literary and dramatic entertainments and dancing parties. When any of these social diversions was given, it was necessary, of course, to remove the desks, seats, tables, and other furniture used for the purposes of the school from their proper and accustomed positions in the room in which the entertainment was to take place. On the evening of the 2d day of June, 1916, a dancing party was held in one of the rooms of the school building. To obtain the most available space for that purpose, the desks, seats, etc., were moved to various parts of the room, some of them being placed in front of and against the cases in which the books used in the school were kept. These cases were in sections and were placed one on top of another and thus were made to form, practically, a single case. On the opening of the school on the Monday morning following the occasion just referred to, the seats and desks were still in the positions in which they had been placed preparatory to the carrying on of the dance on the preceding Friday night. Miss Hoag arrived at the school building on said Monday something near half an hour prior to 9 o'clock a. m., at which hour the gathered in the room that they proceed to replace the seats in their proper positions in the room. "They moved one," testified Miss Hoag. did not know very much about it, "I was superintending them and I saw that I * * * and then we decided to wait until Mr. Smith [principal of the school] came, and let him move the rest." Immediately after the boys had, upon her suggestion, ceased further attempt to replace the seats and desks, Miss Hoag, having occasion to examine a certain book preparatory to taking up her class that morning upon the subject treated by said book, went to the bookcase to procure the same. She discovered that she could not open the case and so procure the particular book she then desired without moving from in front of the case one of the sections of desks and seats which had on the previous Friday been placed there to facilitate the dancing party held in the room on that evening. She thereupon, un aided by any one, attempted to move the particular section which prevented her from opening the case, and for that purpose put her weight upon the desk and thus succeeded in moving it. Instantly she experienced a sudden, dull pain in her back, and from this she suffered for the remainder of the three weeks of the school term. Although she made no complaint of her injury to the principal of the school or the trustees thereof at any time during the remainder of the term, she did complain of her pain to one of her associate teachers and a student at the school, and, after sustaining the injury, refrained from further active participation in the social affairs of the school in which, prior to the accident, she had quite uniformly taken a lively and prominent part. The injury from which Miss Hoag suffered by reason of the accident was in the spine and technically described by Dr. Baldwin, a specialist in othopedic surgery, as a "dislocation of a lumbar sacral articular joint”—that is, the displacement of one of the smaller joints between the sacrum and the lumbar vertebræ -an injury requiring the placing of the patient in a plaster of paris cast. Miss Hoag testified that, on occasions when, for the purposes of the social functions of the school, the desks were removed from their proper places in the schoolroom, the students usually replaced them, sometimes assisted by Mr. Smith, the principal; that she never knew of the janitor performing that duty; that the teachers were not expected to remove the desks on such occasions, or having been moved to replace them in their proper position in the room; that it was no part of her work to move or replace the desks. Robert Nicholls, a trustee of the petitioner, school district, and P. B. Smith, principal of the school at the time of the employment of Miss Hoag as a teacher, each testified that she was employed wholly as a teacher, and that the removal of the desks and the performance of like duties in connection with the management of the school were not included within the scope of her employment; that the school had a janitor whose duty it was to do all janitor work, "but this one act of moving the seats the janitor did not do because the seats were too heavy to move without help." There was other testimony given by the trustees and by the principal and one of the associate teachers of Miss Hoag, that it was not within the duties of the subordinate teachers to see that the desks, when removed from their accustomed places in the rooms, were replaced or to take a hand in moving them. In fact, it may be stated that the fact no such duty was cast upon Miss Hoag or any of the teachers may be accepted as fully established in this case. S. R. Gage, a trustee of the district, testified that, assisted by other members of the board of trustees, he weighed one of the sections of the seats and found it to weigh 458 pounds, and that all the other sections, save as to the number of seats of which they consisted (some consisting of five and others of seven seats), were in every respect precisely like the one weighed. We have now given herein an abridged but accurate statement of all the facts brought to the attention of the accident board in this case. [4] As to what we esteem the pivotal question in this case, viz., whether the injury, as the evidence shows it to have occurred, arose out of and in the course of the applicant's employment, it may well first be observed that, while, as has been well said in the cases, it is not easy to give a comprehensive definition of the words, "arising out of the employment," which shall actually embrace all cases within the act, and with precision exclude those not within its terms, it may nevertheless safely be laid down that an injury may be said to arise out of the employment when there exists a causal connection between the condition under which the work is required to be performed and the resulting injury. Kiser's Workmen's Compensation Acts, pp. 73, 74, and cases cited in the footnotes. "A risk," continues the same author in the same connection, "is 'incidental to the employment' when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. * * There must be a causal connection between the employment and the injury, and the injury must be the rational consequence of some hazard connected with the employment." And at page 82 of the same work, the author announces this rule: "Where, at the time of the injury, the employee is engaged in a voluntary act not accepted by or known to his employer and outside of the duties for which he is employed, the injury cannot be said to be in the course of his employment." [5, 6] The proposition here then is whether the evidence discloses a causal connection between the conditions under which the act culminating in the injury to the applicant was done and her employment as a teacher, or, in other words, was the act in the performance of which the injury was sustained reasonably within the contract of employment? We think the answer must be in the affirmative. Recapitulating briefly and in a general way the facts as they were discovered by the undisputed evidence, we find the situation here to be this: That connected with the school and for its purpose a library of books appropriate and necessary to the profession of teaching is maintained in the school and located in a room adjacent to that in which the applicant instructed her classes; that, on the Friday preceding the Monday on which the accident occurred, the desks were, preparatory to the carrying on of a dancing party on that night, moved from their proper positions in the room, and some of them stacked up in tiers near and against the sectional cases constituting the bookcase; that, on the Monday morning following that social event and before and at the time school was opened for the day, these desks had not |